Adamson v Chief Executive of Oranga Tamariki

[2021] NZHC 2530

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. SEE JUDGMENT PARAGRAPH [1].

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-349

[2021] NZHC 2530

BETWEEN

IAN ADAMSON AND KATE JONES

Appellants

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI

First Respondent

AND

JAMES ROBINSON

Second Respondent

Hearing:

8 September 2021

Appearances:

I Adamson and K Jones self-represented Appellants N J Wills and G Niven for the First Respondent

L J Barry for the Second Respondent M J Baker for the Child

Judgment:

24 September 2021

JUDGMENT OF COOKE J

Table of Contents

Factual background[5]

The Family Court decision[22]

Jurisdiction[26]

Appellants’ arguments on appeal[34]

Was Alice in “serious harm”?[37]

Were the alternatives exhausted?[44]

Without notice orders should not have been made[54]

Pre-determination[61]

Rights of the child[65]

Challenge to factual findings[68]

Conclusion[78]

ADAMSON v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2021] NZHC 2530 [24 September 2021]

[1]    The appellants appeal from the decision of the Family Court making certain orders relating to the care and protection of a three year old child.1 In order to protect the identity of the child I will refer to her as Alice, and I have substituted the names of parents and grandparents (and accordingly the parties) with other names to allow this decision to be reported, whilst protecting the identity of the affected whānau in a manner that is consistent with ss 11B, 11C and 11D of the Family Court Act 1980 and s 437A of the Oranga Tamaraki Act 1989 (the Act). This allows publication of this judgment of a professional or technical nature as contemplated by s 11B(4)(a)(i). But I reiterate the concern raised during the hearing that given there has been social media posting in relation to the circumstances of this case, real care will be needed in relation to any publication that is not genuinely of a professional or technical nature.

[2]    Under the decision under appeal the Family Court has confirmed orders that Alice remain in the day to day care of her paternal grandmother, under the general care and protection of Oranga Tamariki. As a result of earlier orders made by the Family Court Alice was removed from the care of her mother Ms Jones. Ms Jones lives with her own parents. Ms Jones and her father Mr Adamson are the appellants. In broad terms the orders have resulted in Alice being removed from the care of her mother and maternal grandparents, and placed by Oranga Tamariki in the care of her paternal grandmother.

[3]    Alice was born with complications affecting her ability to feed, and to grow. She was removed from the care of her mother because paediatricians and other health professionals have developed significant concerns that Alice’s special needs are not being properly addressed in the care of her mother and maternal grandparents, and that this has put her in jeopardy. An order under s 39 of the Act was made after the appellant discharged Alice from hospital and took her home against medical advice.

[4]    Whilst there is some dispute as to the exact nature of the orders made by the Family Court, those orders have confirmed that Alice will remain in the day to day

1      Chief Executive of Oranga Tamariki v Adamson [2021] NZFC 6161.

care of her paternal grandmother subject to further reports being obtained, and the regular reviews contemplated by the Act. The appellants appeal against that decision.

Factual background

[5]    At the hearing in the Family Court in June of this year both of the appellants gave evidence along with six other witnesses. This included both the paediatricians who have most  recently  been involved in Alice’s  care  — Dr Nicholas  Reid and  Dr Ross Wilson. They also provided reports on the care provided at a first hospital at which Alice was treated by two other paediatricians, Dr Margaret Andre and Dr Philip Leadbitter. Advice from Starship Hospital, and other specialists was also referred to in evidence.

[6]    Alice was born in late 2018 at term, but she was small and there had been signs of foetal distress. She initially remained in hospital but was then discharged. She had a brief re-admission in January, and then was seen by a dietician in February 2019 and a feeding plan was established. She was seen by Dr Andre in April and admitted because of a concern that she was not feeding properly and had faltering growth. Nasogastric feed tube management was discussed with Alice’s mother, Ms Jones, but she was not supportive as she was said not to be concerned about her weight. Supplemental formula was introduced as part of a feeding regime. In April and May Ms Jones is reported to have indicated a concern about using the supplemental feed on the basis she was not concerned about Alice’s weight, and that any problem was due to the occasions when Alice was in her father’s care under the care of children arrangements that were in place.

[7]    In June 2019 Alice was presented at the emergency department with a three week history of poor oral intake. Supplemental feeds via a nasogastric tube were initiated. She gained weight while in hospital care. She was discharged in July to her mother’s care with a plan to administer supplemental feeds via the nasogastric tube.

[8]    After a viral illness she was admitted to the children’s ward for observation, and later discharged. But she presented at hospital again in August with a history of vomiting. During this admission the appellants expressed a concern that Alice was allergic to the formula that had been prescribed. There was a disagreement between

the appellants and the hospital team which was resolved by a compromise using the formula that they preferred, and she was discharged in September.

[9]    After discharge the appellants discontinued nasogastric feeds without consultation with the clinicians. Further discussions then took place in an attempt to persuade the family to administer the feeds. At this stage the appellants initiated their own blenderised feeds which  they  administrated  through  the  nasogastric  tube.  Mr Adamson explained in his submissions to me that Alice was simply not able to retain the feed that the hospital had prescribed, that the dietician was not able to give any other suggestions, so they instituted their own plan involving blended foods. The family were advised this was inappropriate, and in conflict with national guidelines, but the appellants responded that they had consulted Starship Hospital who approved of their approach. The family had indeed made contact with Starship, but this was limited to contacting an administrator who had sent them standard documentation. They had not contacted a dietician or other health professional at Starship.

[10]   At about this stage a report of concern was made to Oranga Tamariki by the hospital. The relationship between the family and the medical advisers deteriorated. The family requested reduced frequency of paediatric nurse visits, and indicated they were going to increase Alice’s oral feeds, and reduce the nasogastric feeds. Dr Andre then obtained advice from paediatricians at Starship Hospital who recommended very close nutritional monitoring. The doctors at Starship shared the concerns that there was inadequate nutrition, and accordingly medical neglect.

[11]   In an attempt to improve the relationship between the family and the medical team Alice’s care was transferred to Dr Philip Leadbitter. He first saw Alice in December 2019. In the meantime Oranga Tamariki made an application to the Family Court for  an  interim  custody  order  on  13  December  2019.  By  minute  dated  18 December Judge Black adjourned the application because the new medical team had been appointed and it was “hoped that some progress can be made”.

[12]   A family group conference was held in February 2020, and a plan for Alice’s care was discussed. Alice then developed significant constipation and vomiting precipitated by the oral iron medication that had been prescribed, potentially exacerbated by exclusive formula feeding. This episode required a further hospital

admission. Dr Leadbitter then arranged for Alice to be transferred to Starship, but Alice’s mother declined this referral. As a consequence arrangements were made for Alice’s care to be transferred to another hospital in the region.

[13]   Alice was so transferred on 20 March 2020. At this stage Dr Wilson at that hospital assumed primary responsibility for Alice’s care. He observed that she was poorly nourished, that she had failed to develop normal feeding responses due to poor nutrition and that she required nasogastric feeding.

[14]   Dr Wilson then arranged a meeting involving all of those involved in Alice’s care on 30 March to seek to establish a working relationship between the hospital and the family. Dr Wilson had set out a plan in a proposed agreement with the family. But the appellants objected to the attendance of the Oranga Tamariki social worker at the meeting. Dr Wilson reported on the situation in the following terms:

During this meeting I believed that I did not have the opportunity to discuss or explain the proposed goals of care. I also did not have the opportunity to discuss my proposed agreement on working together, apart from briefly discussing the clause that if [Alice’s] family did not accept the medical opinion that they had requested, I would not feel able to continue to manage her medical problems.

Ms [Jones] stated that she wished to take [Alice] home. I understood this was because she was unhappy with this clause regarding my medical opinion. I explained that because [Alice] was currently dependent on [nasogastric] feeding that discharge would be contrary to my medical advice, and would not be safe for [Alice].

[15]   Ms Jones and Mr Adamson left the hospital taking Alice with them. Oranga Tamariki then made an ex-parte application to the Family Court for a warrant under  s 39 of the Act. This was granted on 30 March and Alice was retrieved from the care of the appellants and returned to Wellington hospital. Judge Black then made orders granting interim custody and interim guardianship to the Chief Executive of Oranga Tamariki under s 78(1) and s 110AA(1) of the Act. Oranga Tamariki directed that Alice’s day to day care be transferred to the paternal grandmother in April 2020.

[16]   The reasons for the underlying condition affecting Alice’s feeding were then further explored by the hospital. The potential for a surgical procedure that would assist feeding was discussed with Professor Mark Stringer, a paediatric surgeon, but after a consultation with him this was discounted because Alice was able to take food

orally. A further possibility was that external or emotional factors were at least contributing to Alice’s condition, and a decision was made not to discuss vomiting in her presence. This emotional or psychological aspect remains a potential contributor to Alice’s situation.

[17]   Attempts were made to reach agreement with the appellants on the type of feed she would receive. This included changing to a soy-based formula due to concern about an allergy to dairy products. While at Wellington hospital Alice was accidently given milk based formula that was for another baby. The period when Alice had been fed another baby’s dairy based formula without concern was thought to disprove the theory that she had a dairy allergy, but a move was made in an attempt to respond to the appellants’ concerns.

[18]   In July and August Alice had further acute deteriorations with vomiting, dehydration and weight loss leading to further admissions to Wellington hospital. After she put on weight her care was transferred to Dr Nick Reid, a paediatric consultant in the Hutt Valley.

[19]   Dr Reid reported that he has found it challenging to engage and develop a trusting therapeutic relationship with the appellants. There was an agreeable first meeting, but following a second meeting and subsequent emails he indicated that the appellants were sceptical of the integrity of the health care team. In his report he summarised the overall position in the following way:

… there have been numerous concerns raised by multiple health professionals in both outpatient and inpatient contexts about [Kate] and her parents understanding and management of [Alice’s] identified health needs and their management of [Alice] in terms of the prescribed treatment plans.

These concerns included:

i.Not engaging with or believing there was a problem with [Alice’s] growth, contrary to the information she was receiving from health professionals

ii.Not following recommended prescribed treatment plans

iii.Retracting consent for treatments after they have been discussed

iv.Refusal to consent or allow treatments that were felt to be in [Alice’s] best interests by the clinicians looking after her

v.Implementing inappropriate feeding treatments without medical discussion or dietician oversight

vi.Refusal to change treatments that were considered to be unsafe by the medical team

vii.Refusal to agree to admission to hospital when recommended by healthcare team

viii.Refusal to allow tertiary specialist review (transfer to Starship hospital)

[20]   A report under s 178 of the Act dated 27 July 2020 from Ms Kay Cunningham states that the appellants’ beliefs are so strongly held that it is unlikely they will follow advice of medical processionals as needed, and that this puts Alice at risk.

[21]   Alice appears to have been making progress in her paternal grandmother’s care. She was discharged from hospital in September 2020 and has not been re- admitted since. Most recently Ms Baker, the lawyer for the child, has provided a report from Dr Reid of her most recent outpatient appointment on 16 August 2021. That had not proceeded as intended as Dr Reid  had  introduced  a  protocol  that  involved  Ms Jones attending the appointment with Alice and the paternal grandmother without Mr Adamson being present. But Mr Adamson attended with Ms Jones and Dr Reid discontinued the appointment after Alice had been weighed. He conducted a phone consultation with Alice’s paternal grandmother the following day. The summary is his appointment report states:

[Alice] has weaned off her [nasogastric] and is making good progress with growth and oral intake, is meeting her nutritional needs orally and has well controlled constipation. She is making steady developmental progress but would benefit from enrolment in [early childhood education] to support particularly her social development. Given her progress my recommendation is to reduce weight checks and nursing visits to monthly. …

The Family Court decision

[22]   In the decision under appeal the appellants sought to discharge the orders that had been made under ss 78(1) and 110 of the Act. Such applications for variation or discharge of interim orders are contemplated in s 125 of the Act, and the appellants had standing to seek to discharge such orders. These applications were opposed by Oranga Tamariki and by the second respondent. In addition, the appellants applied for

orders that Alice’s maternal grandparents be appointed additional guardians of Alice. This application was also opposed.

[23]   The Judge found that Alice was a child in need of care and protection, noting that the medical evidence called by Oranga Tamariki was uncontradicted by any expert evidence called by the maternal family. The Judge reviewed that evidence and held:

[56] The evidence clearly establishes that [Alice] was very seriously at risk when she was admitted to hospital. Ms [Jones’] decision to discharge [Alice] from hospital against clear medical advice to the contrary was irresponsible and clearly contrary to [Alice’s] wellbeing and best interests. That is why the hospital immediately notified Oranga Tamariki when the discharge occurred, that is why Oranga Tamariki then immediately applied for a place of safety warrant, that is why I granted that application for a place of safety warrant and that is why [Alice] was uplifted from her grandparents’ home in the middle of the night and returned to hospital. I regret that [Alice] was uplifted from her grandparents’ home in the middle of the night but the responsibility for that having occurred rests at the feet of her mother, not at the feet of Oranga Tamariki.

[24]He then reviewed the other evidence about Alice’s care and held:

[69]      The evidence establishes that [Alice] is safe in her grandmother’s care, and even if I were to determine that [Alice] is not safe in her grandmother’s care, it does not follow that she must be returned to her mother’s care, if I find that she would be unsafe in her mother’s care.

[70]      On the basis of all the evidence, I am satisfied and I determine that [Alice] continues to be a child in need of care and protection because of her health needs which need to be carefully managed and the difficulties which exist between her families.

[25]   On the maternal grandparents’ application for the appointment of additional guardians he held that this would be generally only be appropriate where the existing guardians were not undertaking their guardianship responsibilities, or where there was a disagreement between them. This was not the case, and the Judge did not consider an appointment of further guardians was appropriate. He accordingly held that the appellants’ applications should be dismissed.

Jurisdiction

[26]   Under s 341 of the Act the appellants have a right of appeal. This is conducted in accordance with s 127 of the District Courts Act 2016. The appeal is by way of rehearing involving the approach set out by the Supreme Court in Austin, Nichols &

Co Inc v Stichting Lodestar.2 It is not an appeal from the exercise of a discretion.3 The onus is nevertheless on appellants to demonstrate the respects in which the judgment under appeal is said to be in error, or to convince the appellate Court to reach a different view, and this Court can take into account any advantages enjoyed by the Family Court.4

[27]   The first respondent disputed the appellants’ right to pursue an appeal in relation to the decisions made in relation to Alice’s care and protection. Section 341 provides:

341     Rights of appeal against decisions of Family Court

(1)This subsection applies to a decision of the Family Court, in proceedings under this Act, to—

(a)make or refuse to make an order (other than an interlocutory or interim order); or

(b)dismiss the proceedings; or

(c)otherwise finally determine the proceedings.

…

(3)A party to proceedings under this Act in the Family Court in which an interlocutory or interim order is made, a child or young person to whom the proceedings relate, or any other person prejudicially affected by the order, may, with the leave of the Family Court, appeal to the High Court against the order.

…

[28]   Counsel for Oranga Tamariki argued that the appellants had a right of appeal under s 341(1) in relation to the Family Court’s decision not to grant the application to become additional guardians, but not in respect of the care and protection decisions of the Court. That was because the care and protection decisions made by Judge Black were not final determinations. He had only declined to vary or discharge the interim orders. Any appeal on those matters could only proceed by way of leave which had not been granted by the Family Court. Counsel for the second respondent supported that submission.

2      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

3      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

4      M v Chief Executive of Oranga Tamariki [2019] NZHC 717 at [48]; SLB v Ministry for Children, Oranga Tamariki [2020] NZHC 1129 at [29].

[29]   I see no substance to this argument. The decision of the Judge was ultimately recorded in the following terms:

Result

[75]      I am satisfied and determine that [Alice] is a child in need of care and protection. I am further satisfied and determine that her care and protection needs can only be met by the making of a care and protection order.

[76]      Ms [Jones’] application for discharge and rescission are dismissed. Mr [Adamson’s] and Ms [Jones’] applications for a discharge of the Oranga Tamariki orders are dismissed. Mr [Adamson’s] and Ms [Jones Senior’s] application for appointment as additional guardians is dismissed.

[77]      The matter of disposition now needs to be progressed. The Ministry should file a s 186 report and plan by 30 July 2021. The parties should file any response to the plan by 27 August 2021. The matter should be allocated a 30-minute fixture with me as soon as possible after that to deal with disposition. For the avoidance of doubt, I will not entertain argument about the form of disposition orders, the application is for a s 101 order. That order will be granted, and the s 110 order will be continued. The disposition hearing will be in relation to whether the plan is adequate in terms of s 130 of the Act.

[30]   It is apparent from [76] that the Judge has dismissed the guardianship applications, and the appellants’ application to discharge the interim care and protection orders. But it is equally apparent at [75] that he has made a decision that Alice’s care can “only be met by making a care and protection order”. That contemplates a final care and protection order under s 101, and not an interim order under s 102. The Judge has made that clear in [77] as he expressly stated that a final order under s 101 “will be granted”, with a subsequent 30 minute fixture set for finalising the form of the order following receipt of further reports. That conclusion was reached following a four-day substantive hearing at which the parties, including two  paediatricians,  gave  evidence  and  were  cross-examined.    In  the  terms  of   s 341(1)(a) of the Act, the Judge has decided to make a s 101 order, and that order is not an interim or interlocutory order.

[31]   Ms Wills pointed out that an order under s 101 cannot be made without the Court receiving a report of a social worker as required by s 186, and a plan as required by s 128. That is true, but the Court has addressed these statutory requirements by setting up a final disposition hearing, and at the same time making it plain that the Court will not hear further argument on whether the s 101 order will be made. So it is clear that the Court has decided to make a s 101 order engaging a right of appeal

contemplated by s 341(1)(a). I do not accept Ms Wills’ argument that the Judge has only proposed to make a s 101 order. Rather he has decided to make one.

[32]   I also note that following Judge Black’s decision Mr Adamson made another application for orders, including an order under s 101 on 13 July 2021. By minute dated 21 July the Judge effectively dismissed these applications stating “I am advised by the Registry that an appeal against my decision has been filed. That appeal is the appropriate forum to determine whether my decision is correct”. This confirms the view I have formed on the meaning and effect of his judgment. It also demonstrates that had leave been required it would likely have been granted.

[33]   Were it otherwise the proceedings would be in a unsatisfactory state, with the appellants having a right of appeal but only in relation to the guardianship decision, with a further right of appeal to this Court arising from the 30 minute hearing next month. Splitting this appeal into two appeals on the same subject matter would not be appropriate.

Appellants’ arguments on appeal

[34]   The appellants represented themselves on the appeal. Two original notices of appeal, and two amended notices of appeal have been filed. Three affidavits have also been filed. In their written submissions the appellants raised a number of legal arguments including arguments on how the relevant statutory provisions applied in the present case. I will focus on the arguments addressed in those submissions in addressing the appeals.

[35]   In their oral submissions the appellants focused more on their perspective of the circumstances of this case. As I indicated during the hearing, the submissions they made to me cannot be taken as evidence even though much of what they advanced in their oral submission was really describing the facts from their perspective. The relevant evidence is that given to the Family Court, which was subject to the normal processes such as sworn evidence and cross-examination. The submissions that the appellants advanced provide context for their legal arguments, but it is not evidence. But I take these submissions to encompass a challenge to the factual findings made by the Family Court Judge.

[36]   In addressing the appellants’ submissions I will seek to address them in a different way than presented in the written submissions, but in a way that addresses the substantive points they have raised.

Was Alice in “serious harm”?

[37]   Before the Court can make orders of the kind that were made here it must be satisfied that “a child or young person is in need of care or protection”.5 The Family Court Judge found that Alice was in need of care or protection.6 This standard is further defined in ss 14 and 14AA in the following terms:

14       Definition of child or young person in need of care or protection

(1)A child or young person is in need of care or protection if—

(a)the child or young person is suffering, or is likely to suffer,  serious harm—

(i)      in the circumstances described in section 14AA(1); or

(ii)     having regard to the circumstances described in section 14AA(2); or

(b)the parents or guardians or the persons who have the care of the child or young person are unable to care for the child or young person; or

(c)the child is a subsequent child of a parent to whom section 18A applies and the parent has not demonstrated to the satisfaction of the chief executive (under section 18A) or the court (under section 18A(4)(a) or 18C) that the parent meets the requirements of section 18A(3); or

(d)the child or young person has behaved, or is behaving, in a manner that—

(i)      is or is likely to be harmful to the physical or mental or emotional well-being of the child or young person or to others; and

(ii)     the child’s or young person’s parents, or the persons having the care of the child or young person, are unable or unwilling to control; or

(e)in the case of a child of or over the age of 10 years and under the age of 14 years, the child has committed an offence or

5      Oranga Tamariki Act 1989, s 101(1). There are similar formulations in the other relevant provisions.

6      Chief Executive of Oranga Tamariki v Adamson, above n 1, at [70].

offences of sufficient number, nature, or magnitude to cause serious concern for the well-being of the child.

(2)Subsection (1)(a) must be applied in conjunction with section 14AA (which describes the circumstances in which a child or young person is suffering, or is likely to suffer, serious harm).

14AA Circumstances in which child or young person is suffering, or is likely to suffer, serious harm

(1)For the purposes of section 14(1)(a)(i), a child or young person is suffering, or is likely to suffer, serious harm if—

(a)the child or young person is being, or is likely to be, abused (whether physically, emotionally, or sexually), deprived, ill- treated, or neglected; or

(b)the parents or guardians or other persons who have the care of the child or young person are unwilling to care for, or have abandoned, them.

(2)For the purposes of section 14(1)(a)(ii), other circumstances that may constitute serious harm, or establish the likelihood of serious harm, include—

(a)a child’s or young person’s development or physical or mental or emotional well-being is being, or is likely to be, impaired or neglected, and that impairment or neglect is, or is likely to be, avoidable:

(b)the child or young person has been exposed to family violence (within the meaning of section 9 of the Family Violence Act 2018)):

(c)serious differences exist between the child or young person and the parents or guardians or other persons who have the care of them:

(d)serious differences exist between a parent, guardian, or other person who has the care of the child or young person and any other parent, guardian, or other person who has the care of them.

(3)For the purposes of applying section 14(1)(a) and subsections (1) and (2), serious harm may occur (without limitation) as a result of—

(a)an incident; or

(b)2 or more incidents that taken on their own would not be serious enough to constitute serious harm, but the cumulative effect of which is serious enough to cause serious harm; or

(c)the co-existence of different circumstances.

[38]   The appellants argue that there is nothing that adequately defines what “serious harm” is, and that “this cannot be determined by one’s own perception of how this should be interpreted”.

[39]   I do not accept this argument. The expression “serious harm” sets a standard arising from the ordinary meaning of those words. The child or young person must not only be suffering or likely to be suffering harm, but the harm must be serious. The provisions then provide additional guidance on when that would be so. In s 14AA(3) the relevance of one-off and cumulative incidences is explained. These provisions are then to be applied in the context of the Act overall, including the general mandate in s 4A that the wellbeing and best interests of the child or young person are the first and paramount consideration, and the other principles of the Act in s 5.

[40]   I do not attempt to reformulate a test using different language from that used in the section. The provisions themselves set out the test to be applied. The requirements have been considered in other authorities.7 A reasonably high threshold must be met before a Court determines that a child is in need of care and protection. That is understandable given that orders can then be made removing a child from the care of their parents or other caregivers. But there is no lack of statutory clarity, and I do not accept the appellants’ submission that there is any lack of an objective standard. The Judge’s view must be formed in accordance with the clear legislative prerequisites, and I accept that the Judge correctly identified and applied them in the judgment under appeal.

[41]   To the extent that the appellants’ argument involves a challenge to the Judge’s finding that Alice was a child in need of care and protection because she was not suffering or likely to suffer serious harm, I do not accept that challenge. The medical evidence establishes that Alice suffers from an undiagnosed condition, or problem that causes her difficulty in properly feeding. She is underweight and suffers from bouts of vomiting as well as related complications such as constipation. She has had a series of hospital admissions because of a concern that she is not feeding properly, or because

7      See C v Chief Executive of the Department of Child, Youth and Family Services [2003] NZFLR 643 (HC).

of complications. This puts her wellbeing and development as a young child at serious risk in the absence of a carefully monitored plan overseen by paediatricians.

[42]   Her mother and maternal grandparents have been unable to form a cooperative relationship with paediatricians or other medical staff who are responsible for Alice’s medical care. I do not accept Mr Adamson’s submission that they followed the hospital’s plans. They have declined to follow the advice of the paediatricians, or to follow the prescribed regime. The Judge held that Alice was “very seriously at risk” when she had been admitted to hospital.8 They then took Alice out of hospital against medical advice. They did so because they wanted to follow their own plan, although it was not clear what that was. The Court heard evidence from two paediatricians which included the reports of two other paediatricians and other relevant experts explaining their views on what was required and the Judge found that their opinions were unshaken by cross-examination. No evidence was presented by the appellants showing they had an appropriate alternative management plan.

[43]I accordingly agree with the conclusions of the Family Court Judge.

Were the alternatives exhausted?

[44]   The appellants’ next argument focused on the effect of s 73 of the Act, supported by other related provisions. Section 73 provides:

73 Court not to make care or protection order unless satisfied that child’s or young person’s need for care or protection cannot be met by other means

(1)The court shall not make a care or protection order (other than an interim order) unless it is satisfied that it is not practicable or appropriate to provide care or protection for the child or young person by any other means, including the implementation of any decision, recommendation, or plan made or formulated by a family group conference convened in relation to that child or young person.

(2)In deciding whether or not to make a care or protection order (other than an interim order) on the basis of any of the grounds specified in section 14(1)(a)(i) or (ii) (in the circumstances referred to in section 14AA(1)(a) or (2)(a)), the court shall take into account, among other things, any evidence before the court—

8      Chief Executive of Oranga Tamariki v Adamson , above n 1, at [56].

(a)that the kind of harm suffered by the child or young person will neither continue nor be repeated:

(b)that a parent or guardian or other person having the care of the child or young person will be capable of ensuring that the kind of harm suffered by the child or young person will be neither continued nor repeated.

[45]   The Judge here found that Alice’s care and protection could not be met by other means.9 The appellants argued that before care and protection orders could be granted all services and supports that could be offered to a whānau needed to be exhausted first. They emphasised the potential community-based support available with the assistance of Ms Marina Pousei of Naku Enei Tamariki Inc, and argued the requirements of s 73 had not been satisfied as there were still other ways to meet the care and protection needs of Alice. They argued that Oranga Tamariki needed to work with whānau, including community-based services, in a way that would enhance the whakapapa, whanaungatanga and strengthen and preserve the bond between tamariki and whānau.

[46]   The appellants further submitted that given that no services order under s 86 had been offered at any time so that the requirements of s 73 were not met. This was said to be inconsistent with the duties of the Chief Executive of Oranga Tamariki under s 7(2) of the Act in relation to the promotion of community services, the duties under the Treaty of Waitangi under s 7AA, the rights recognised by ss 10, 11 and 27(1) of the New Zealand Bill of Rights Act 1990, and the right to be free from the prohibited grounds of discrimination set out in s 21 of the Human Rights Act 1993.

[47]   I do not accept these arguments. The first point is that the threshold referred to in s 73 is that it is not “practicable or appropriate” to provide the care and protection by other means. That does not require alternative means to be “exhausted” as was submitted. Rather, as Ms Wills submitted, it contemplates a realistic assessment of practical alternatives.10

9 At [71].

10 See W v Chief Executive of the Department of Child, Youth and Family Services HC Auckland M602–IM2001, 24 August 2001; M v Chief Executive of the Department of Child, Youth and Family Services High Court Hamilton AP81/01, 2 February 2002.

[48]   More importantly, however, there was no evidence before the Court showing that there was, in fact, an appropriate alternative to giving the Chief Executive of Oranga Tamariki the care and custody of Alice so that her needs could be addressed in accordance with medical advice. The options before the Court were accordingly stark ones. Either Alice was to be in the care of her mother and maternal grandparents, or she was to be cared for under the control of Oranga Tamariki in accordance with the plans formulated by the hospital. The appellants had elected to discharge Alice from hospital and follow their own plans for her wellbeing. Care by the Chief Executive also encompassed the potential for Alice to be placed in the day to day care of her paternal grandmother, as subsequently transpired. Faced with those stark alternatives I agree with the Family Court Judge that the appropriate order was made, and that s 73 was complied with.

[49]   It is important to recognise that, whilst this case involves the Chief Executive of Oranga Tamariki obtaining care, control and guardianship over Alice it is not a case where Alice is being totally removed from her whānau. Rather Alice has been placed in the day to day care of a paternal grandmother with regular contact from her father, as an alternative to the care of mother and maternal grandparents. So she is still in the day to day care of her family. I accept that this provides little solace to the appellants, who no doubt love and cherish Alice and want to be a part of her life. However, this unique set of circumstances has placed their approach against that of medical experts. It is clearly established that at this stage Alice requires medical oversight to deal with her feeding and other issues. As such, the Court must navigate this situation with her best interests as the paramount consideration.

[50]   I accept Ms Pouesi may have a role to play in the future. A letter dated 23 July 2021 setting out a general plan for Alice’s care was provided for this Court. That plan was not available to the Family Court Judge, and neither did Ms Pouesi give evidence. I agree with Ms Baker’s submission as counsel for the child that Ms Pouesi may have a role in the future in developing a more cooperative relationship between the maternal whānau and health professionals, and the wider whānau. But what she offers was not and is not a substitute plan for the immediate needs of Alice. Those needs are focused on the acute need to manage Alice through a difficult period where she has not been

properly feeding and has not received the appropriate nutrition for her growth and development.

[51]   I do not accept that any of the other statutory rights referred to by the appellants were engaged, or if engaged that they were breached. The interpretation of a provision such as s 73 may be influenced by these other rights, but in the end the Court must make a decision that is in the best interests of the child having regard to the alternatives that might be available under s 73. Here there were no realistic alternatives.

[52]   I do not agree with the appellants’ related argument that they have had no input into the s 128 plan that is being formulated, and that both Oranga Tamariki and the judicial system have resiled from their responsibility to ensure the safety and wellbeing of Alice as the first and paramount consideration. The appellants will have a right to be heard on the s 128 plan, and accordingly have input into it, in the upcoming hearing before the Family Court. This is a matter that has not yet been addressed, and can properly be addressed by the appellants at the Court at the later hearing.

[53]   I also do not accept the appellants argument that Alice has not had her cultural needs met by Oranga Tamariki because her records have not been updated to record the iwi she belongs to, and accordingly there has been a failure to meet the duties set out in s 7AA. These factors were not directly in issue. A cultural report received in September 2020 was before the Court. It recorded that Alice’s maternal grandfather is “disconnected … from his Māori, Tangoio and Kahungunu origins …”. It may be that such connections can now be developed, and this may play a role in subsequent decision-making. But it has not caused any failure to make appropriate decisions at this point, which are focused on Alice’s immediate needs given the significant risk to her wealth and wellbeing. It does not change the stark choice that confronted the Court.

Without notice orders should not have been made

[54]   The appellants also argue that it was not appropriate for the Family Court to have made interim orders without them being given notice of the application. They point out that there were already Family Court proceedings in existence at that time.

They refer to s 8 of the Act which provides that with any decisions that significantly affect a child or young person the parents should be informed wherever practical. The appellants contend that there was no immediate life threatening risk to Alice when the without notice application was made, and they also criticise the extent of the affidavit evidence that was put before the Court. Mr Adamson said that when Alice was removed she was asleep in her mother’s arms. They refer to the rights of natural justice in s 27(1) of the New Zealand Bill of Rights Act, and to the well-established principles, reflected in decisions relating to the Family Court, relating to applications made without notice.11

[55]I do not accept the appellants’ submissions for three reasons.

[56]   First, the interim orders here were initially made under a place of safety warrant issued under s 39 of the Act. That is a procedure that contemplates an application without notice to other parties. Such a warrant can only be issued if the high standards set by s 39(1) are satisfied. There can be no criticism of the s 39 order being sought without notice as this is what the section contemplates.

[57]   Secondly, in DE v Chief Executive of the Ministry of Social Development the Court of Appeal considered whether without notice applications to take custody of children were appropriate. The Court addressed the potential avenue involving a warrant under s 39, recording that when orders are made by a Judge he or she “can and should put in suitable conditions to make sure that the parents or caregivers have the opportunity to be heard at the earliest possible time”.12 The fact that there were already proceedings in existence in the Family Court does not change that analysis. Their existence simply mean that the relevant issues can then be more promptly addressed in those proceedings. After the s 39 warrant was made on 30 March 2020 a without notice order was granted under s 78(1) on 17 April, and Ms Jones instructed counsel to make an application to discharge the order on 1 May, albeit it was then withdrawn (but later applied for again). The proceedings continued with notice from that stage.

11     DE v Chief Executive of the Ministry of Social Development [2008] NZFLR 85 (CA); CLM v Chief Executive of the Ministry of Social Development [2011] NZFLR 11 (HC).

12     DE v Chief Executive of the Ministry of Social Development, above n 11, at [26].

[58]   Finally, and in any event, these arguments provide no grounds to challenge the decision that is under appeal. It is true the relevant background to this decision involved applications made without notice. But the decision under appeal is one that has been made on notice after all parties have been heard and called whatever evidence they wish to have called. So any criticism of the original order is no longer relevant to the determinations made by the Family Court, and the appeal to this Court.

[59]   I also reject the appellants’ related argument that the least restrictive order was not made. The appellants relied on a further passage from DE v Chief Executive of the Ministry of Social Development where the Court of Appeal said:

[49] The scheme of these provisions suggests that the least intrusive order that meets the care and protection needs of the child should be chosen when a s 67 declaration is made. This is also implicit in the principles and purpose of the Act (ss 5 and 13) which emphasise the importance of maintaining and supporting family unity. We consider that the scheme of the Act suggests that the same principles apply to s 78 orders. As Judge Adams has noted, “[i]t is a serious step to break up a family, even for a temporary period of time, by the making of a custody order under s 78 [and] although such orders are made frequently . .. they are never made lightly” (Director-General of Social Welfare v K (CYPF 048/172-179/98, 23 September 1998)). There is provision under ss 86A, 88 and 92 for interim orders to be made. Any application for an interim order under s 78 should, in our view, explain why another interim order, such as an interim service, restraining or support order, would not serve adequately to protect the child.

[60]   Whilst s 67 has since been repealed these views have more general application, and they apply here. For the reasons I have already canvassed I also accept that it was a serious step to remove Alice from the care of her mother. There can be no doubt it was an immensely painful experience for the appellants. But the circumstances warranted taking such steps. Alice had been taken from hospital against advice in circumstances where the medical evidence was that she needed to remain admitted because of her condition. That involved a serious threat to her health and welfare. It was not necessary for there to be a formal application on notice in the Family Court to deal with that situation. Moreover the urgent orders effectively preserved the status quo — returning Alice to hospital care — with subsequent on notice procedures then followed in the Family Court.

Pre-determination

[61]   The appellants further challenge the decisions of the District Court on the basis there has been a miscarriage of justice arising from a breach of natural justice and apparent bias.

[62]   One aspect of this argument arises from an oral ruling of the Judge on the first day of the hearing on the admissibility of certain evidence. In it he accepted that the evidence from a social worker, Ms Emily Lawrence was admissible notwithstanding that she was not attending the hearing. This ruling is a reasonably straightforward one, particularly given the discretion available under s 12A of the Family Court Act 1980 for the Court to receive evidence that would otherwise be inadmissible. I agree with the decision, and find that it does not evidence pre-determination.

[63]   The appellants also object to observations the Judge made in the judgment under appeal. The Judge acknowledged that the decision would be bitterly disappointing to the appellants, and he advised them that there are certain things that they should stop doing as it was not helping their position — such as posting material on the internet, abusing the staff at Oranga Tamariki and sending angry emails to politicians and news organisations. Such events included one occasion when they had streamed what became a confrontational visit to Oranga Tamariki offices live on Facebook.13 I accept that the Judge adopted a critical tone in relation to these matters. But I agree with the Judge that drawing the attention of members of the public to Alice’s case is not in her best interests. Alice needs to be returned to a more normal life as soon as possible. In addition the unconstructive criticisms of Oranga Tamariki staff, the medical team and counsel for the child make it difficult to build the relationships that are needed to help Alice with her significant health challenges.

[64]   The Judge’s observations do not amount to pre-determination — they are observations made after hearing from the parties that are included as part of the decision of the Court. They fully inform the appellants where problems have emerged, and where changes should be made. When a Judge makes comment in a final judgment, even when it involves a criticism of one of the parties, that does not involve

13     Chief Executive of Oranga Tamariki v Adamson , above n 1, at [62].

pre-determination. The comments simply form part of the decision the Court has made.

Rights of the child

[65]   The appellants also argue that the decision of the Family Court is inconsistent with the fundamental rights of the child, particularly the rights recorded in the United Nations Human Rights Convention on the Rights of the Child. They refer to Article 16 — the right of a child not to be subjected to arbitrary or unlawful interference, and the right in Article 9 for a child to live with their parents. They also refer to other associated rights. They also rely on a number of other sources, including the lawyer for the child Best Practice Guidelines. They argue that there have been multiple breaches of Alice’s rights, and they challenge the role that has been performed by counsel for the child and the views that she has expressed to the Court. They say that Alice’s age means that counsel for the child cannot be expressing the child’s view, and that counsel’s views have been biased.

[66]   Again I do not accept these submissions. It is not necessary to go back to the international instruments, or other indirect references to the rights of the child. Those sources influence the interpretation and application of the Act, but the Act itself puts the wellbeing and best interests of the child as the first and paramount consideration under s 4A, and the general principles referred to in s 5 elaborate upon the child’s best interests, including principles of the kind the appellants have referred to. This case clearly turned on what the best interests of Alice were. That was the focus of the Family Court Judge’s decision.14 The appellants disagree with the assessments that have been made by the Family Court Judge, the paediatricians and other health professionals involved in Alice’s care, as well as that made by counsel for the child. But they have presented no alternative approach other than by outlining their own opinions which differ from those outlined by the professionals.

[67]   I accordingly conclude that the decision of the Family Court has been made with the appropriate emphasis on the rights of the child.

14 At [36].

Challenge to factual findings

[68]   The above conclusions seek to address the alleged errors of law addressed in the appellants written submissions. To the extent that I have not addressed particular matters it is because I have concluded that the appellants point is misconceived or is otherwise without substance. But as indicated the appellants’ oral submissions involved them explaining to me their perspective on the relevant events that have unfolded involving Alice’s care, and why it was wrong for her to have been removed from their care. Those submissions to me are not evidence for the reasons I have explained, but I proceed on the basis that they amount to challenges to the Family Court Judge’s factual findings.

[69]   I listened carefully to the matters raised by the appellants, but am not satisfied they have shown that the Judge was in error in making the findings that he did. I will focus on three particular matters to illustrate why I have formed that view.

[70]   First Mr Adamson referred to the period of time when the appellants had stopped following the prescribed feeding regime put in place by the first hospital, and instituted their own plan involving blenderised foods being introduced through Alice’s nasogastric tube. He explained to me that they had only taken that step after having discussed the position with the hospital dietician, and only after the dietician had indicated after they had raised their concerns that she did not know what should be done, and then did not revert to them. He said that they then proceeded with their alternative plan.

[71]   There is no finding of the Family Court Judge in relation to that particular interaction with the dietician. But there are other related findings. The first is the Judge’s  finding  on  the  appellants’  evidence   that  both  Starship  hospital  and   Dr Leadbitter had agreed that it was alright for them to feed Alice the homemade blenderised mix.15 The Judge found that the advice that they had received from Starship had only been provided by an administrator and not a medical professional, and that closer analysis of the information sheets so provided indicated that blenderised food should not be used because of the diameter of the nasogastric tube.16

15 At [52].

16 At [53].

The Judge also listened to a recording of the appellants’ interactions with Dr Leadbitter in light of the appellants contention that he had agreed with the approach. He found that all Dr Leadbitter had been seeking to do was “negotiate a compromise to mitigate the harm being caused by the family’s refusal to follow the feeding plan devised by the medical team”.17

[72]   This puts Mr Adamson’s submission to me on what the dietician had said at this time in context. I do not accept the challenge to the Family Court Judge’s findings. I accept that the Family Court Judge has made the appropriate findings based on the evidence before him. The most important aspect of the findings on this particular matter is that they demonstrate that the appellants have not been able to cooperate with the medical advisers that have been involved in Alice’s care. It is for this very reason that the statutory tests allowing the orders under appeal to be made were engaged.

[73]   Secondly, I asked the appellants during their submissions what their plan had been when they had made the decision to remove Alice from hospital care against advice in March 2020. It was this action that led to the orders being made removing Alice from their care. Mr Adamson explained that the feeding plan that the hospital had introduced was not working, and given that it was not working at the hospital it would not work at home. When I asked him what feeding plan they had intended to follow, he said that it would involve a reduced volume of the liquid feed. This was on the basis that Alice was not tolerating the higher quantities the hospital had prescribed as she would only vomit it up. With respect this view illustrates the problem. The appellants intended to depart from the prescribed feeding plan for a child that suffers from a problem or condition resulting in her receiving inadequate nutrition. This confirms the appropriateness of the Court’s findings on the evidence.

[74]   I can understand the appellants’ perspective. They have a child that has a condition of some kind that leads to a difficulty with feeding in circumstances where the doctors are unable to provide any clear diagnosis. The feeding plans that the doctors have prescribed, and the other prescribed steps, have not solved the problem. Alice has vomited up her feeds, and she has developed complications arising from the prescribed feeding programme. That includes the development of constipation which

17 At [54].

is likely attributable to the feed, and she also reacted adversely when iron was introduced into her diet, causing her to vomit. On top of that there have been situations where the hospital team has made errors — most clearly when Alice was fed normal baby formula that was supposed to be given to another child.

[75]   In those circumstances I can understand why the appellants may have developed a degree of scepticism about the medical advice. As the Judge held, the appellants clearly want the best for Alice. This will have been an extremely stressful situation for them. But the medical advice remains the best advice available, and the fact that Alice has had ongoing problems does not mean that this advice is not the best approach. It places Alice at considerable risk to depart from this advice and for the appellants to implement their own ideas. A number of paediatricians have now given consistent advice, and other experts have been consulted. But the appellants have not been able to work alongside any of them. The obligation of the Court under the Act is to act with the best interests of Alice as the paramount consideration. I am satisfied that the Court has done so, and that the orders made here were appropriate. Parental instincts are to be respected. But so are the opinions of four paediatricians, the consulted specialists and the other health experts.

[76]   The third factual matter that it is appropriate to briefly address is the evidence that Alice had  been  smacked  whilst  in  the  care  of  her  paternal  grandmother. Mr Adamson raised a concern about this indicating that he was aware how this kind of behaviour could adversely affect a child from his own childhood. I nevertheless agree with the Judge’s findings on this matter. It has been taken seriously by Oranga Tamariki, but it was assessed as not meeting the threshold for intervention, and the Judge accepted that it was not of such frequency or nature to amount to physical abuse.18 The Judge accepted that all current professional observations indicated that Alice is thriving in her paternal grandmother’s care.19 I accept that this is so. I can understand why the appellants have expressed concern. But their focus now should be on the future, which will involve cooperating with the medical team so that the recent improvements can be continued.

18 At [66].

19 At [68].

[77]   I otherwise dismiss the appellants challenge to the Judge’s factual findings. I agree with the view that has been expressed by Ms Baker that it is important that the appellants now engage with the process. They will no doubt find that difficult. But  as I understand the plans that will be presented to the Family Court the objective will be to return Alice to the appellants care at the appropriate time. If the appellants work more closely with the medical and other advisers that is more likely to happen soon rather than later.

Conclusion

[78]   I accordingly dismiss the appellants’ appeals. The Judge was correct to conclude that Alice was in need of care and protection, and that there were no other practical alternatives but to make orders continuing the care by Oranga Tamariki. The placement of Alice in the day to day care of her paternal grandmother was also appropriate. I also conclude that the Judge was right not to grant the appellants’ guardianship application as this would simply create conflict and not be in the best interests of the child.

[79]   At the next hearing before the Family Court a report from a social worker under s 186 and the plan required by s 128 will be addressed. This will be the opportunity for the appellants to discuss with the Court their ability to cooperate with the medical team, with the potential for Alice being returned to Ms Jones’ care under that plan when the time is right. I encourage the appellants to make real efforts to adopt a more cooperative approach in that connection. That will ultimately be in Alice’s best interests.

[80]   For these reasons I dismiss the appellants’ appeals. If there is any question as to costs memoranda may be filed.

Cooke J

Solicitors:

Crown Law, Wellington for the First Respondent

Reids Family Law, Lower Hutt for the Second Respondent